Opinion recap: Much more than raisins?

Posted Mon, June 10th, 2013 12:41 pm by Lyle Denniston

Analysis

Giving industries that are regulated by the federal government a potentially broad opportunity to blunt enforcement orders, the Supreme Court ruled unanimously on Monday that farmers are allowed to claim in regular federal courts that they have been wrongly fined for violating an order on the marketing of their crops. The ruling, while coming in the context of government regulation of farming, may have a considerably broader impact.

In essence, the Court’s ruling in a raisin growers’ case — Horne v. Department of Agriculture (docket 12-123) — appeared to mean that regulated entities cannot be compelled to pay regulatory fines before they may contest their constitutionality, under the Fifth Amendment’s protection against uncompensated government seizure of private property (the Takings Clause).

Justice Clarence Thomas’s opinion for the Court did not declare a final victory for the California raisin-producing family involved in the case, but it did give them a chance to bring a fundamental challenge to the government’s authority to fine them for failing to put aside a part of their annual processing of raisins in order to help boost the price of raisins generally.

If the decision were understood as confined to the agricultural field, its potential still appeared to be quite significant. If the government has less authority to impose monetary fines and penalties for failing to obey its regulatory mandates, that will diminish its authority to issue those mandates in the first place. The government has been closely regulating the selling of farm crops since the Great Depression, and continues to enforce a wide array of marketing mandates for crops, ranging from nuts to honey made by bees. Typically, farmers get paid for keeping some of their harvest off the market, so that the price of the share going to market is inflated.

When this case, involving a California couple — who once complained to the Agriculture Department that its raisin-marketing controls were un-American and smacked of “a communist state” — returns to lower courts, they will be able to challenge without first paying it $483,843.53 in civil penalties for failing to set aside enough of two years of raisins they had processed for themselves and for other growers.

Although at one point in this case, the couple was arguing that the crop set-aside requirement itself was an unconstitutional “taking” of the raisins kept off the market, the Court treated their present claim as being that the command that they pay a considerable sum was the “taking” that was unjustified under the Constitution’s Fifth Amendment. Lower courts will have to sort out what kind of “taking” the Horne family is actually asserting at this stage of the case.

Reading between the lines of the Court’s opinion, it would seem to be a signal that a wide array of businesses that live under government regulatory regimes will be able to bring constitutional “takings” claims in response to assessment of fines or civil penalties for disobeying those regimes.

A federal law known as “the Tucker Act” generally requires an entity which claims that the government has seized private property without paying compensation for it to bring that claim before a specialized tribunal, the Court of Federal Claims. But the Court’s new ruling said that the Act does not apply when a farmer who has been found to have violated an agricultural marketing order, and has been fined, seeks to defend against the penalty by arguing that it was a “taking.”

Agricultural marketing orders are enforced within the Department of Agriculture itself, and can result in an order to pay a substantial amount, as happened with the Horne family. But a farmer faced with such an order can now go to a regular federal district court with a “takings” claim, and have that claim judged before payment is actually due. They won’t have to pay up, and then go in a separate plea to the the Court of Federal Claims.

The ruling thus was a potentially major setback for the Department of Agriculture in particular, especially if the Hornes win their “takings” claim when the case is completed in lower courts. Its broader impact, beyond the agricultural marketing field, will depend upon how lower courts interpret the language of the Court’s opinion in different factual settings.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.